Avenues of Criminal Justice: The Blackfoot Confederacy from 1877 to 1889

In the late nineteenth century, the United States and Canada held different views on policy making with respect to the Blackfoot tribe in the Great Plains. Canada’s consistent policies and the North West Mounted Police’s consistent reluctance to enforce them afforded the Blackfoot a level of independence, although their American counterparts during this period arguably had more jurisdiction over intra-Indian crimes. US policy in 1877 allowed the Blackfeet on the Montana reservation the freedom to judge their internal affairs. This freedom was especially alive during John Young’s tenure as Indian agent; his continued use of the Code of Laws and tendency to defer to tribal leaders set him apart from his successors. As time passed, policy changes and decisive US Supreme Court cases slowly eroded sovereignty from tribes across the nation. By 1889 their situation closely resembled that of Canadian Blackfoot—one in which the laws of the dominant society had stripped the tribe of their sovereignty. What both nations failed to realize was that poorly devised broad policies failed to address the needs of local Indian communities. As a consequence, the administrative changes that took place in 1885 did more damage than good to the Blackfoot. The more important determination is not which tribe had more sovereignty by 1889, but rather, that neither nation’s course of action was more beneficial than the other’s in maintaining tribal sovereignty. Nevertheless, an overwhelming sentiment spread at this time which proclaimed the superiority of Canadian Indian policy in allowing Indian self-determination.

After 1877, policy makers and the general public began envisioning Canadian and American Indian policies as opposites. Commissioners of Indian affairs routinely cited Canadian policies and practices as ones they wished to mimic. This perception continued to gain support over time with US government-sanctioned reports on Indian affairs, such as Abbott’s 1914 “The Administration of Indian Affairs” and the Meriam Report in 1928. These reports further branded this view among the American public, vilifying American policies in a way that ignored the faults of Canadian Indian policy. This notion continues to be highly regarded and prevents a clear understanding of the differences between the two sets of policies. Given these sentiments, understanding the ways in which both nations undermined Native sovereignty becomes increasingly relevant.

In Indians in the United States and Canada: A Comparative History, Roger L. Nichols supports the conclusion that Canadian Indian policy had different outcomes than American Indian policy.¹ Nichols goes one step further to assert that First Nations had better outcomes than American Indians. Hana Samek disagrees with this view and asserts that outcomes were relatively constant in both nations. In The Blackfoot Confederacy, 1880–1920: A Comparative Study of Canadian and US Indian Policy, Samek analyzes the impact of these two sets of policies on the Blackfoot people. The Blackfoot Confederacy, which spans present-day Montana and Alberta, and thus is subject to both American and Canadian policy, serves as an effective unit of analysis for a case study. Samek argues that despite the different sets of policies, both were implemented in such a way that the outcomes on both sides of the border were similar, implying that the differences in policies had minimal impact. Despite her comprehensiveness, Samek’s analysis fails to address the implications of each nation’s legal system for the Blackfoot. Scholars MacLeod and Rollason, in their study of criminal justice in the Northwest Territories, found that Native populations were treated more leniently than whites; however, they did not look at this question comparatively. Our research fills this gap in current scholarship on comparative Canadian and American Indian policy of the late nineteenth century. Our findings add further support to Samek’s conclusion that the different sets of policies resulted in similar outcomes on both sides of the border.

Between 1877 and 1889 in the Blackfoot Confederacy, several legal systems existed in conjunction—US, Canadian, and tribal—making the concept of legal pluralism especially relevant to our argument. For example, on...